On 16 January 1995, Plaintiff was injured while working for Employer
when he slipped and fell on a wet floor in Employer's break-room.
As a result of this accident, Plaintiff and Employer entered into
an agreement for compensation pursuant to North Carolina Industrial
Commission Form 21. The agreement stated Plaintiff "sustained
an injury by accident arising out of and in the course of . .
. employment [with Employer]" on 16 January 1995, and the
accident resulted in "back pain." The agreement was
approved by the Commission on 14 March 1995 pursuant to N.C. Gen.
Stat. §97-82. Plaintiff remained out of work from 17 January
1995 until 30 January 1995.

On 9 January 1997, Plaintiff requested a workers' compensation
hearing on the ground Defendants refused to pay Plaintiff additional
compensation pursuant to N.C. Gen. Stat. §97-25 for the injury
received from his 16 January 1995 compensable injury.

John Larry Simpson, M.D. (Dr. Simpson), medical and safety director
for Klaussner Furniture Industries, the parent company of Employer,
testified he treated Plaintiff following his 16 January 1995 injury.
Plaintiff indicated he was experiencing pain in his left shoulder,
posterior neck, low back, and upper hip area, and Dr. Simpson
testified the "predominant symptoms deal[t] with left-sided
neck, shoulder, [and] arm pain." When Dr. Simpson saw Plaintiff
for a follow-up visit on 30 January 1995, Plaintiff did not report
any pain in his low back. Dr. Simpson's records indicated he saw
Plaintiff on 12 October 1995, and Plaintiff complained at that
time of low back pain. Plaintiff told Dr. Simpson the pain began
when he was lying on his sofa at home, felt a spasm, and "jumped
up off the couch and felt a catch in his back."

Richard Albert Blase, D.C. (Dr. Blase), a doctor of chiropractic,
testified he treated Plaintiff on 15 May 1996 for a low back condition.
Plaintiff told Dr. Blase the condition "was a gradual onset
of a duration of approximately three weeks" and the condition
was not work-related. Dr. Blase testified Plaintiff's previous
neck and shoulder pain did not relate to this lower back pain.
He also testified, however, that Plaintiff's pain in 1996 could
have been part of a "continuum of medical problems."
His findings indicated Plaintiff was "not necessarily in
poor spinal health but not in good spinal condition structurally."

On 30 November 1998, the Commission made the following pertinent
findings of fact:

25. There is insufficient medical evidence from which to determine
by its greater weight that [P]laintiff's absence from work since
May 1996 is causally related to [P]laintiff's compensable injuries
of . . . 16 January 1995.

26. The evidence tends to show that any disability after May
1996 is related to an alleged injury in late April or May 1996.
There is no Form 21 agreement wherein [D]efendants would have
accepted the compensability of any such injury; accordingly, [P]laintiff
is not entitled to a presumption of continuing disability and
retains the burden of proving his disability claim.

27. . . . [T]he Deputy Commissioner found that she was unable
to accept as credible [P]laintiff's allegations that he was, at
the time of the hearing, disabled as the natural and direct result
of his compensable injuries. This credibility determination was
based in part on [P]laintiff's demeanor and in part on the medical
records and other credible evidence of record. The [Commission]
defers to this credibility determination. As the Deputy Commissioner
noted, in October 1995 [P]laintiff maintained that his low back
pain was not work related. He maintained this position again when
he sought treatment in May 1996. He later changed his position
and told his physicians, and testified, about another work-related
incident in May 1996. If the low back pain was related to [the]
compensable injury of . . . 16 January 1995, it would have become
symptomatic before October 1995.

The Commission entered the following pertinent conclusions of
law:

"1. Plaintiff's complaints of low back pain in October 1995,
May 1996, and continuing did not result from [P]laintiff's injuries
by accident on . . . 16 January 1995. . . .

The issues are whether: (I) Plaintiff had the burden of proving
the back injury for which he requested additional medical treatment,
pursuant to N.C. Gen. Stat. §97-25, was causally related
to his compensable injury of 16 January 1995; (II) the Commission
failed to make credibility determinations and therefore failed
to perform its fact-finding function; and (III) Employer engaged
in ex parte communications with Dr. Simpson relating to
his treatment of Plaintiff.

I

Plaintiff argues the Commission erroneously placed on him the
burden of proving the medical treatment he now seeks is causally
related to his compensable 16 January 1995 injury. We agree.

Subsequent to the establishment of a compensable injury under
the North Carolina Workers' Compensation Act, an employee may
seek compensation under N.C. Gen. Stat. §97-25 for additional
medical treatment when such treatment "lessens the period
of disability, effects a cure or gives relief." Parsons
v. Pantry, Inc., 126 N.C. App. 540, 541-42, 485 S.E.2d 867,
869 (1997) (citing Little v. Penn Ventilator Co., 317 N.C.
206, 345 S.E.2d 204 (1986)). Any claim for additional medical
compensation must be made within "two years after the employer's
last payment of medical or indemnity compensation" unless
the employee, prior to the expiration of the two-year period,
files a claim for additional medical compensation, or the Commission
orders additional medical compensation on its own motion. N.C.G.S.
§97-25.1 (Supp. 1998).

In an action for additional compensation for medical treatment,
the medical treatment sought must be "directly related to
the original compensable injury." Pittman v. Thomas &
Howard, 122 N.C. App. 124, 130, 468 S.E.2d 283, 286, disc.
review denied, 343 N.C. 513, 472 S.E.2d 18 (1996). If additional
medical treatment is required, there arises a rebuttable presumption
that the treatment is directly related to the original compensable
injury and the employer has the burden of producing evidence showing
the treatment is not directly related to the compensable injury. Id.

In this case, Plaintiff and Defendants entered into an agreement
for compensation, pursuant to North Carolina Industrial Commission
Form 21, for an injury sustained by Plaintiff on 16 January 1995.
The agreement stated, in pertinent part, that Plaintiff "sustained
an injury by accident arising out of and in the course of . .
. employment [with Employer]" on 16 January 1995, and this
accident resulted in "back pain." The agreement was
approved by the Commission, pursuant to N.C. Gen. Stat. §97-82,
on 15 March 1995, and therefore constitutes an award of the Commission.
N.C.G.S. §97-82 (Supp. 1998); Glenn v. McDonald's,
109 N.C. App. 45, 48, 425 S.E.2d 727, 730 (1993).

In its 1998 opinion and award, the Commission found as fact that
"[t]here is insufficient medical evidence from which to determine
by its greater weight that [P]laintiff's absence from work since
May 1996 is causally related to [P]laintiff's compensable injuries
of . . . 16 January 1995." Although the findings are far
from clear, they appear to indicate the Commission failed to give
Plaintiff the benefit of the presumption that his medical treatment
now sought was causally related to his 1995 compensable injury.
The better practice in these section 97-25 hearings is for the
Commission to clearly delineate in its opinion and award that
it is giving Plaintiff the benefit of the Parsons presumption.
Because Plaintiff was entitled to such a presumption, we remand
this case to the Commission for a new determination of causation.

II

Plaintiff contends the Commission failed to review the evidence
and make credibility determinations and, therefore, failed to
perform its fact-finding function. We disagree.

In an action for workers' compensation, the Commission is the
ultimate fact finder. Adams v. AVX Corp., 349 N.C. 676,
681, 509 S.E.2d 411, 413 (1998). While our courts have recognized
that when the Commission reviews a cold record "the hearing
officer is the best judge of the credibility of witnesses because
he is a firsthand observer of witnesses," Pollard v. Krispy
Waffle, 63 N.C. App. 354, 357, 304 S.E.2d 762, 764 (1983),
the Commission is ultimately responsible for making its own determinations
of credibility, Adams, 349 N.C. at 681, 509 S.E.2d at 413.

In this case, Defendants contend the Commission did not perform
its fact-finding function under Adams when it deferred
to the credibility determination of the Deputy Commissioner in
the following finding of fact:

[T]he Deputy Commissioner found that she was unable to accept
as credible [P]laintiff's allegations that he was, at the time
of the hearing, disabled as a natural and direct result of his
compensable injuries. This credibility determination was based
in part on [P]laintiff's demeanor and in part on the medical records
and other credible evidence of record. The [Commission] defers
to this credibility determination. As the Deputy Commissioner
noted, in October 1995 [P]laintiff maintained that his low
back pain was not work related. He maintained this position again
when he sought treatment in May 1996. He later changed his position
and told his physicians, and testified, about another work-related
incident in May 1996. . . . (emphasis added).

Contrary to Plaintiff's contention, the Commission's finding
demonstrates it did consider credibility when reviewing the facts
of this case, and did not blindly defer to the credibility determination
of the Deputy Commissioner. The Commission stated the Deputy Commissioner
found Plaintiff not credible, and the Commission then stated facts,
as "noted" by the Deputy Commissioner, tending to show
Plaintiff was not credible. The Commission, therefore, properly
performed its fact-finding function concerning the credibility
of the witnesses.

III

The essence of Plaintiff's final argument is that because Dr.
Simpson is an employee of Employer, any knowledge gained by Dr.
Simpson in his treatment of Plaintiff, a fellow employee, is imputed
to Employer, and this necessarily violates the teaching of Salaam
v. N.C. Dept. of Transportation, 122 N.C. App. 83, 468 S.E.2d
536 (1996), disc. review dismissed, 345 N.C. 494, 480 S.E.2d
51 (1997). It thus follows, Plaintiff contends, Dr. Simpson's
testimony must be excluded and not considered by the Commission.
We disagree.

In a workers' compensation case, a physician may not engage in
ex parte communications with the defendant. Id.
(citing Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990)).
Plaintiff, however, has presented no evidence Dr. Simpson engaged
in ex parte communications with Defendants regarding his
treatment of Plaintiff. Any such communications would violate
not only the rule of Salaam, but also the ethical standards
of Dr. Simpson's profession, see American Medical Association,
Code of Medical Ethics §5.05 (1998-99) ("physician
should not reveal confidential communications or information without
the express consent of the patient, unless required to do so by
law"), and we will not assume, without supporting evidence,
that Dr. Simpson has acted unethically, see Jenkins v. Public
Service Co. of N.C., --- N.C. App. ---, ---, 518 S.E.2d 6,
11 (1999) (appellate court will not assume rehabilitation professional
acted unethically). On this record, therefore, the Commission
did not err in admitting Dr. Simpson's testimony.[Footnote
1]

Furthermore, we reject Plaintiff's contention that ex parte
communications between the company physician and the company
or the company's attorney are necessarily inferred. We acknowledge
the general rule that the principal is chargeable with the knowledge
of his agent. 3 Am. Jur. 2d Agency §281, at 784-85
(1986). When, however, the agent has a reason or motive to withhold
facts from his principal, the "knowledge of the agent is
not imputed to the principal." Id. §290, at 794.
In this case, Dr. Simpson has an ethical obligation to withhold
the confidential communications of his patients and thus his knowledge
of these communications and the treatment and diagnosis of his
patients based on those communications are not imputed to Employer.

Vacated and remanded.

Judges WALKER and TIMMONS-GOODSON concur.

Footnotes

1. Any alleged bias by Dr. Simpson, as an employee of Employer,
goes to the credibility of his testimony. See Adams, 349
N.C. at 680, 509 S.E.2d at 413 ("'Commission is the sole
judge of the credibility of the witnesses and the weight to be
given their testimony.'" (citation omitted)).